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From the desk of ... Elizabeth Sepper, Repro Health Watch

What’s at Stake in the Supreme Court Birth Control Cases? More Than You Might Think.

By Elizabeth Sepper, Associate Professor of Law, Washington University School of Law

Elizabeth Sepper, Associate Professor of Law , Washington University School of Law

Access to contraception long seemed settled and remote from the culture wars. After all, 99 percent of American women use birth control during their lives. Twenty-eight states already require insurance to cover contraceptives. Yet, contraception has emerged as the most hotly contested legal issue of 2014. Next week, the Supreme Court will hear a challenge to the Affordable Care Act’s requirement that health insurance nationwide cover contraceptives. The challengers – Hobby Lobby, a craft store chain, and Conestoga, a cabinet manufacturer – are just two of the many for-profit, secular businesses to claim that contraceptive coverage violates corporate free exercise of religion under the Religious Freedom Restoration Act and the U.S. Constitution.

The right of women and men to control their reproductive lives – without their boss’ say-so – hangs in the balance. More than half of U.S. women between ages 18 and 34 cannot afford birth control. Poor health outcomes for mother and child result from unintended pregnancies. Requiring employee insurance to cover contraception is key because half of Americans are insured through their jobs. Before the ACA, many insurance plans did not cover the most effective contraceptives, such as IUDs. Women paid 68 percent more in out-of-pocket health costs than men, in part due to the costs of contraception and reproduction.

But the importance of the Hobby Lobby and Conestoga cases isn’t limited to contraception. For the businesses to prevail, the Court would first have to decide that corporations can exercise religion like human beings – a radical proposition. It would then have to conclude that contraceptive coverage is a burden on corporate religion that can’t be justified by the significant public health and gender equality benefits that birth control coverage brings.

If the Court sides with Hobby Lobby, employees will bear the costs of religious beliefs of corporations. Employees in all workplaces could lose the benefit of any insurance mandate. Corporations could resist covering counseling and testing for sexually transmitted infections. Unmarried women could be denied prenatal care. Employers could oppose covering the HPV vaccine based on the misguided belief that it causes promiscuity. Still others could refuse to include depression screening or kids’ vaccinations in employee insurance.

And that’s just where it begins. A win for Hobby Lobby could resurrect businesses’ attempts to exempt themselves from Social Security, minimum wage, worker’s compensation, antidiscrimination, health, and safety laws. Courts had long rejected such claims. Under the logic of Hobby Lobby, businesses might now prevail, at significant cost to their employees. Employees everywhere would have to worry that their companies might refuse to comply with laws that protect equality and create a safety net. Businesses could argue that religious belief entitles them to pay women less, fire pregnant women, or deny spousal benefits to same-sex couples. Consumers could face heightened discrimination as well. Pharmacies could refuse a patient HIV medication. Hospitals could bar a man from visiting his same-sex spouse. A hotel could disallow bookings by unmarried couples.

A win for Hobby Lobby would open the door for secular, for-profit companies to find religion and demand a veto over their employees’ private decisions. At heart the question for the Court is: Can a corporation have a “conscience” that trumps individual freedom and allows business owners to impose their beliefs on employees and consumers? In the past, the Court answered that question with a resounding 'no' – equality in the workplace and the marketplace rides on the Court doing so again.


Comments

Submitted by Pattycake on December 19, 2014
What strikes me as ironic is that the same people that are against government supported birth control are the same people who complain about "government supported assistance for poverty-stricken citizens?
Submitted by Heidi on April 30, 2014
We can not and must not go back to the stoneage.
Submitted by TJ on April 29, 2014
Professor Sepper asks if corporations can impose religions. The Constitution obviously states that citizens are absolutely free to obey their religion, but not free to impose it. The patriarchs of the Supreme Court might grant themselves a divine right to control fertility to supply corporations with cheap labor for all of that rising profit. Will the Supremes vote for the Constitution or for their stock options? Will they join politicians that make mince meat out of the Constitution to deny women reproductive health care, then slash nutrition and education programs for a malnourished child mill? Why are we allowing politicians to be dead beat parents?
Submitted by Lynnek on April 29, 2014
This is one more of many good reasons to end health insurance through jobs, get a single-payer health insurance system. Extend Medicare.
Submitted by marky on April 29, 2014
THESE ARE OUR BODIES AND WE CONTROL THEM AT ALL COSTS !
Submitted by Cassandra on March 30, 2014
This is America, Church is Church and work is work. You have no right to tell people what they can do in their own lives ! I wonder if you cover prescriptions for men and their erection problems ? I'll bet you do. When the women you employ take maternity leave, you will loose money. I'ts just good business sense.
Submitted by bluebill on March 28, 2014
Separation of Church and state is an important US freedom
Submitted by gina on March 28, 2014
It the women's choice not the employer!!!!!!!!!!
Submitted by OnlyFair on March 27, 2014
Coverage for Viagra and vasectomies should also be on the chopping block!
Submitted by bigmac on March 27, 2014
hobby lobby is nothing but typical for profit business that treats its employees poorly and openly promotes that employment in "terminable at will". A better name for the Green family that owns hobby lobby is Greed because that is what they are. Greedy selfish people who call themselves Christians but when it comes to business matters they act like sinners just like the rest of us!!!!!!!!!!!
Submitted by Bmail on March 27, 2014
women should be the ones making decisions about their lives and their health.
Submitted by katjoy on March 27, 2014
God, I hope no one used markers, tape or poster board purchased from Hobby Lobby to protest their actions!
Submitted by Fred Rilling on March 27, 2014
I know my neighbors craft and now they will never walk into a Hobby Lobby again.
Submitted by george on March 27, 2014
An ounce of prevention is worth a pound of cure. Birth control pills not only prevent a woman from becoming pregnant, they also prevent a woman from having more than one period a month. They also help to prevent heavy bleeding and intense cramps. I know this from experience. Birth control pills were the only thing that gave me any relief. Presently, my daughter suffers from the same malady. She too was put on the pill to help to regulate her period and to halt the two or three periods that she was having every month. These conditions, as well as a child will cause women to miss work. Next they will be hollering about women missing work. Abortion costs more than birth control and children in foster care cost more than birth control. Anyone can have a baby, but not everyonee can be a mother or a father. Hobby Lobby is being HYPOCRITICAL . I too wonder if this is racially motivated. If President Obama were of a different persuation, would they be fighting so hard against this? I wonder. I do feel that they should rethink their position about trying to control a person's life. Let he who is without sin cast the first stone. I have spent my last dime at Hobby Lobby
Submitted by Dr. Jost on March 27, 2014
This is a free country If they don't like contraception, they don't have to use it. But they have no right to deny it to others.
Submitted by baseballfan46 on March 27, 2014
The hobby lobby co. will be boycotted until they learn they are not incharge of my body. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1
Submitted by Hard-Hitter on March 26, 2014
We as a Nation will be better off without the Supreme Court. It is hard to understand no matter what party or philosophy one supports, but HISTORY had been extremely Abusive towards Women's in General.....NOW'S there's the conservative CRAZIEST doing it again to women.......21st Century, WOW, JUST WOW......
Submitted by Steph on March 26, 2014
The reason ALEC, corporate executives and Rapepublicans want to control fertility is to produce a large number of children to starve into submission along with their mothers for cheap labor. Profit is the key. The religion of austerity slashes nutrition funding and anything that might detract from programmed failure in the labor market.
Submitted by sailorgirl on March 26, 2014
No one has the right to force their belief's on anyone. God gave us free will to choose how we want to live. They should trust the very God they use to strip people of their liberties.
Submitted by Faeriesrule on March 26, 2014
When is this blatant attack on women going to stop? There are so many issues in the world that need our attention.
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